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  • Print publication year: 2015
  • Online publication date: November 2017

Chapter III - Existing Legal Framework of PMSC Operation

Summary

Describing the absence of effective regulation for the private security industry as a vacuum is slightly misleading. Various domestic and international legal instruments may apply. However, even when these legal instruments are specifically intended to deal with today's private security industry - and many of them are not - they are ofien poorly designed.

Sarah Percy

INTRODUCTION

Generally speaking, PMSCs as non-State actors constantly challenging the main conceptions of the international legal system based on the State monopoly of violence require regulation. In legal and other literature, references are often made to the concept of legal void characterizing the functioning of PMSCs in conflict areas. It is, however, not entirely correct to speak of the absence of legal norms concerning PMSCs and States associated with the practice of their employment and applicable to their operations: the industry of private military and security service provision is certainly regulated, but the extent of this regulation at different levels varies considerably. Given that these corporations operate in a complicated legal labyrinth made up of a variety of international rules and principles, domestic legal instruments, self-regulatory mechanisms, and contractual obligations, attention should be devoted to these different forms of regulation in order to understand the legal framework governing their operations and use by governments in zones of conflict. PMSCs are registered or incorporated as private businesses on the territory of home States and legal rules governing the establishment of private contractors allow them to operate and to carry out certain services. These rules may specify obligations of PMSCs during their operations and clarify the nature of their activities, but do not provide much guidance in determining the scope and circumstances of State responsibility for possible misconduct of employees of these companies constituting breaches of international law. In this regard, a variety of international and transnational legal instruments applicable to PMSC operations and the hiring, host, and home States are crucial.

The current Chapter seeks to briefly elaborate on national legal rules of some countries regarding PMSCs while also addressing international and transnational levels of regulation. In essence, this Chapter will set up the framework for further analysis performed through the lens of State responsibility and will accordingly serve as the basis of considerations made in subsequent Chapters.

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